Monday, 16 November 2015

Crime victims: does EU law now confer extra rights?

Most crimes have victims. Those victims are
often not only devastated by the impact of the crime, but also frustrated by
the insensitivity of the criminal justice system towards their concerns. To
address this, back in 2012 the EU adopted a Directive on crime victims’
rights, which Member States must comply with by today’s date. This law replaces
a previous EU law on the subject, a Framework Decision dating back to
2001. What is different about the new rules? How much impact could they have on
victims’ rights in practice?

Previous law: the Framework Decision

The
Framework Decision had to be applied in phases between March 2002 and March
2006. It defined a ‘victim’ broadly, as meaning ‘a natural person who has
suffered harm, including physical or mental injury, emotional suffering or
economic loss, directly caused by acts or omissions that are in violation of
the criminal law of a Member State’. According to the CJEU rulings in Dell’Orto
and Eredics, in light of this definition, the Framework Decision
did not apply to legal persons as victims. Nor did it require Member States to
make legal persons criminally liable for their acts (Giovanardi).

It
applied to ‘criminal proceedings’ defined in accordance with national law, and
the Court of Justice confirmed in Katz
that this included private prosecutions. But the CJEU also ruled (in Gueye and Salmeron Sanchez) that it did not
harmonize substantive criminal law, such as domestic violence legislation.

As to the substance, the Framework Decision provided
first of all generally for ‘respect and recognition’ for crime victims,
requiring that each Member State ensure that victims have a ‘real and
appropriate role in its criminal legal system’, that they ‘are treated with due
respect for the dignity of the individual during proceedings’ and that they
‘recognise the rights and legitimate interests of victims’. In the case of
‘particularly vulnerable victims’, there was an obligation to provide ‘specific
treatment best suited to their circumstances’. Member States also had to make
provision for victims to supply evidence, but to refrain from questioning them
any more than necessary. Bringing these points together, the ‘most vulnerable’
victims had to able to testify in a manner which protected them from the
effects of giving evidence in open court, by means compatible with national
legal principles.

In the well-known Pupinojudgment, which concerned
very young children who were allegedly abused in a nursery by their teacher,
the Court of Justice unsurprisingly ruled that such victims must be considered
‘vulnerable’ pursuant to the Framework Decision – leaving aside the bigger
question of whether all minors must be considered ‘vulnerable’. So these
victims were entitled to the protection of a special procedure in which they
did not have to give their testimony in court, as long as this was consistent
with the right to a fair trial. But in the later judgment in X, concerning alleged sexual
abuse of a child, the CJEU ruled that this did not entail an obligation to use those special
procedures where in effect the victim was asking for their use as a means to overrule
the discretion to bring proceedings which national law gave to prosecutors.

Similarly, in the Katz case, the Court ruled
that a person bringing a private prosecution did not have the right to demand,
in light of the generality of the Framework Decision, that he have the status
of a witness; but nevertheless the Framework Decision required that he must be
able to submit evidence in the proceedings in some form. The Court later clarified
(in Gueye and Salmeron Sanchez) that this right to be heard in
the proceedings entailed the possibility for the victim to describe what
happened and to express an opinion, but not to insist on any particular
penalty.

Next, victims had the right to receive information on
a number of issues, inter alia on the
conduct of the criminal proceedings following their complaint and on the
release of the accused or convicted person, at least where there might be a
danger to the victim. If victims were parties or witnesses, Member States had
to take necessary steps to reduce any communication difficulties they face
(presumably by providing for translation and interpretation; this fell short of
the later EU Directive on translation and interpretation for suspects).
Member States also had to ensure legal and non-legal aid was provided to
victims who are parties, and that victims who were witnesses or parties might receive
reimbursement of their expenses. (Compare to the proposal on legal aid for
suspects, discussed here).

Victims’ privacy and safety had to be protected, inter
alia from reprisals from the offender. This could entail special methods of
giving testimony, ensuring lack of contact with the offender in court proceedings,
and limiting photography of victims in courtrooms. The CJEU clarified in Gueye
and Salmeron Sanchez that these rules aimed ‘to ensure that the ability of victims adequately to take part in the
criminal proceedings is not jeopardised by the possibility that their safety and
privacy is placed at risk’. But victims’ right to a private life didn’t mean
that they could influence the penalties which courts could impose upon
offenders, such as a mandatory injunction in domestic violence cases, since
these provisions in the Framework Decision did not aim to regulate any indirect consequences to the victims’
private life stemming from the imposition of criminal penalties upon offenders.

Member States had to ensure that it was possible for
the victim to receive a decision on compensation from the offender in criminal
proceedings, unless in certain cases compensation is provided in another
manner; and Member States had to return victims’ property that was not needed
for the purpose of criminal proceedings. The Advocate-General’s opinion in Dell’Orto argued that the former
right had to include compensation for pecuniary losses, and that any exception
from the possibility to obtain a decision on compensation had to be limited to
certain cases only and take place usually within the framework of the same
proceedings which resulted in a conviction of the offender. As for the return
of property, the opinion argued that the obligation to return it only applied
where the ownership of the property was undisputed or had been established in
criminal proceedings; otherwise the issue is a matter for civil law.

The Framework Decision also required Member States to
‘seek to promote penal mediation’ between victim and offender ‘for offences
which it considers appropriate’. The CJEU clarified this obligation in Eredics:
Member States had discretion to decide which offences are covered by such
proceedings. While their discretion might be affected by a need to use
objective criteria to decide on which cases to cover, it was not a breach of
the Framework Decision to confine penal mediation to cases involving offences
against the person, transport safety, or offences against property. Member
States could equally exclude domestic violence cases from penal mediation (Gueye
andSalmeron Sanchez).

There were specific provisions for victims who are
resident in another Member State, and for cooperation between Member States. Finally,
Member States also had to promote victim support organizations, train personnel
in contact with victims (particularly police officers and legal practitioners),
and ensure that intimidation of victims cannot occur in venues such as courts
and police stations.

The Commission’s
first report on the national transposition of most provisions of the
Framework Decision was quite critical regarding the lack of reported national
measures which fully met the specific requirements of the Framework Decision. Its second report concluded that implementation of the Framework Decision was still
‘not satisfactory’, due to the continued variations and omissions in national
law and the decision of some Member States to implement the Framework Decision
by non-binding means.

The 2012 Directive

From today’s
date, the Directive has fully replaced the previous Framework Decision (except
in Denmark, which had an opt-out). One difference with the previous rules is
the legal effect of the law: unlike the Framework Decision, the Directive can
confer directly effective rights on victims, rather than indirect effect only
(as confirmed by the CJEU in Pupino).

Furthermore,
there are a number of substantive changes to the rules, which overall increase
the standard of protection for victims’ rights. First of all, the Directive
contains a new provision on its objectives, including a general requirement of
decent treatment, including non-discrimination; there is also a specific
general rule on child victims (Art 1(2)). The definition of ‘victim’ now expressly
includes family members in the event of a victim’s death (Art 2(1)(a); ‘family
members’ are defined in Art 2(1)(b)). There are wholly new rules on the
victim’s ‘right to understand and to be understood’ (Art 3), followed by
greatly expanded rules on the victim’s right to receive information (Arts 4 to
6; compare to the ‘letter of rights’ Directive for criminal suspects).

Victims have a
‘right to interpretation and translation’, which is much stronger than the
rules on ‘communication safeguards’ in the previous Framework Decision. In
fact, these rights are essentially a short version of suspects’ rights to
information and translation, set out in the EU legislation referred to above.
They also have a ‘right to access victim support services’, which again is much
stronger than the rules on ‘specialist services and victim support
organisations’ in the Framework Decision. On the other hand, the right to be
heard for victims has not changed significantly.

A potentially
important new right for victims is the right to review a decision not to
prosecute (Art 11), although this does not go so far as to require all Member States to
ensure a prosecution following every
complaint by a victim (which some Member States provide
for already in principle). While the ‘procedural rules’ for such
reviews are determined by national law, Member States do not have any
discretion as regards the underlying obligation to provide for such reviews, or
to limit the substantive grounds
which might be pleaded in such challenges. For instance, it should always be
possible to argue that a decision not to prosecute was discriminatory, in light
of the obligation to deal with victims and respond to victims’ complaints in a
non-discriminatory manner (Art 1(1)). The preamble (recital 44) suggests that
this right also applies ‘where a
prosecutor decides to withdraw charges or discontinue proceedings’.

However, the
Directive includes some special rules on this right. Where (under national law)
the role of the victim is established only after a decision not to prosecute
has been taken, only the victims of serious
crime have such a right of review (Art 11(2); on the definition of ‘serious’
crime, see recitals 8 and 18 in the preamble). Also, the right
of review does not apply to decisions
taken by courts (recital 43 in the preamble), so victims have no right to review
of a sentence, or to early release, although they have the right to information
about such developments (Art 6). The right to
review ‘does not concern special procedures, such as proceedings
against members of parliament or government, in relation to the exercise of
their official position’ (Art 11(5)). Member States
can also override the right to review in cases where a prosecutor decides not
to prosecute following an out-of-court settlement (Art 11(3)).

Procedurally, victims
must be given sufficient information about their right to review ‘without
unnecessary delay’ (Art 11(3)). Normally the review must be carried
out by a body independent of the body which decided not to prosecute (recital 43
of the preamble),
but where the decision not to prosecute was taken by the highest prosecution
authority and no review of that decision is possible under national law, the
decision must be reviewed by the same authority (Art 11(4)). Implicitly,
it is not necessary for a court to carry out the review, but that interpretation
is questionable in light of the right of access to court in Article 47 of the
Charter.

The Directive is
silent on what happens if the review is successful. However,
logically the
principle of effectiveness of EU law requires that in this case, at the very
least the prosecutors must reconsider their decision not to prosecute to the
extent that it was flawed, and produce a fresh decision following that
reconsideration.

Next, the
Directive provides for safeguards in restorative justice services, in place of
the prior rules on ‘penal mediation’ (Art 12; it follows that the case law on
penal mediation is no longer relevant). But a series of rules (Arts 13-19) have
not been fundamentally altered: the right to legal aid; the right to
reimbursement of expenses; the right to the return of property; the right to a
decision on compensation from the offender; the rights of victims resident in
another Member State; the general right to protection; and the right to avoid
contact with the offender.

Finally, there
are a number of changes to other important rules: the rules on protection of
victims during criminal investigations (interviews, legal assistance, medical
examinations) have been expanded (Art 20); the right to privacy of victims has
been elaborated further (Art 21); the provisions on victims with ‘specific
protection needs’ have been hugely expanded (Arts 22-24); there are expanded
provisions on the training of practitioners (Art 25); the rules on cooperation
between Member States’ authorities have been expanded (Art 26(1)); and there
are new provisions requiring Member States to make victims more aware of their
rights (Art 26(2)).

Compared to the
previous legislation, the Directive not only has stronger legal effect, but
also has increased substantive rights for victims as regards: non-discrimination;
the ‘right to understand and to be understood’; the right to receive
information; the ‘right to interpretation and translation’; the ‘right to
access victim support services’; the right to review a decision not to
prosecute; safeguards in restorative justice services; protection of victims
during criminal investigations; the right to privacy of victims; and victims
with ‘specific protection needs’, including victims of hate crimes. The Directive is therefore likely to make a significant contribution to the protection of crime victims' rights in the EU - assuming, as always, that it is fully and correctly implemented.

See also: the Commission’s detailed
guidance document concerning implementation of the Directive.